A vast majority of marriages in the United States produce children. It is our philosophy that the well being of your children is the most important issue in your divorce case. The legal standard applied to decisions about children is the “best interest of the child” standard. This standard is defined by statute. C.R.S. 14-10-124 .
The basic assumption is that absent some physical or mental problem both parents are presumed to have an equal ability to raise their children. The statute refers to this as “parenting” and the time your children spend with you “parenting time.” Every case with children is required to have a written “Parenting Plan” filed with the Court at the time of the conclusion of the case.
Colorado is one of three states to eliminate the term custody from its divorce laws. The psychologists and social workers convinced the Colorado Legislature that the old system treated children as property and contributed to fights over custody. They convinced the legislature that adopting a system created in the State of Washington consisting of “parental responsibilities” and “parental rights” set out in a parenting plan was a better approach.
The Court will look at the “best interest of the child” standard to fashion a parenting time. The statute requires the Court look at certain “factors,” review the facts of your case in light of the standards established by these factors, and make an overall conclusion on the totality of the circumstances of that evaluation. The factors are:
- The wishes of the child’s parents as to parenting time;
- The wishes of the child if he or she is sufficiently mature to express reasoned and independent preferences as to the parenting time schedule;
- The interaction and relationship of the child with his or her parents, his or her siblings, and any other person who may significantly affect the child’s best interests;
- The child’s adjustment to his or her home, school and community;
- The mental and physical health of all individuals involved, except that a disability alone shall not be a basis to deny or restrict parenting time.
- The ability of the parties to encourage the sharing of love, affection, and contact between the child and the other party; except that if the court determines that a party is acting to protect the child from witnessing domestic violence or from being a victim of child abuse or neglect or domestic violence, the party’s protective actions shall not be considered with respect to this factor.
- Whether the past pattern of involvement of the parties with the child reflects a system of values, time commitment and mutual support;
- The physical proximity of the parties to each other as this relates to the practical considerations of parenting time;
- The ability of each party to place the needs of the child ahead of his or her own needs.
Courts strongly encourage parties to reach reasonable agreements as to parenting time. Unfortunately, this is not always possible, and Courts are asked by the parties to make decisions based upon the above criteria. The Court will often enlist specialists to perform independent investigation. These include Child Family Investigators (CFI)s or Parental Responsibility Evaluators (PRE)s or order full Child Custody Evaluations by a Psychiatrist/Psychologist or Social Worker. The Court requires the parties to supply funds to pay for these experts. CFI’s and PRE’s charge professional hourly rates equivalent to those of lawyers and accountants. Because this can be costly, the Colorado Supreme Court has imposed caps on the fees which a CFI may charge. There is no cap on PREs and other professionals. In the case of Parenting Time disputes, the Court may appoint a Parenting Time Coordinator or Parenting Time Decision Maker.
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